By Astha Bhumish Shah

The Kerala High Court has cautioned POCSO Courts to be vigilant whilst considering allegations of child’s sexual abuse levelled by a child’s mother against the father, especially when there are ongoing matrimonial and custody disputes between them. In this case, the wife had accused her husband of sexually harassing their 3-year-old daughter. The couple was also engaged in an ongoing marital dispute to get the child’s custody. It was alleged by the complainant (mother) that the petitioner (father) licked and touched the private parts of their minor child, hence a crime was registered against the petitioner under Section 3, 4 and 5(1) of the POCSO Act and Section 23 of the JJ Act. The petitioner approached the High Court aggrieved by the FIR and Final Report filed against him.  Upon analyzing the FIR and the FInal Report, the Court found that the complaint made by the mother against the petitioner was false and frivolous to get the child’s custody. It noted that although the mother claimed to have discovered evidence of sexual abuse on the child’s private parts in April 2015, she did not file the complaint until July 2015. Additionally, the Court found it suspicious that the name of the gynecologist who examined the child was not disclosed. The Court further found that the medical reports do not suggest any injury on the child.

The Court stated that making false allegations of child sexual exploitation against the father due to matrimonial disputes causes emotional distress for the accused, child and other family members. It noted that this is a case where a mother was using 3-year-old child as a weapon to fight against her husband. The Court also observed that the mother filed her complaint alleging sexual abuse only after the husband filed a complaint before the police stating that his child was missing. Further, referring to the child’s statement under Section 164 CrPC, the Court noted that despite repeated tutoring to make false allegations, the child told the Magistrate she loves her father more than her mother. The Court thus held that where there is an accusation of sexual abuse against a father during a custody dispute, it should thoroughly re-examine the facts before making a decision. These cases need to be treated with the utmost seriousness since if the allegations are true, it is a grave matter; however, if the allegations are false, an innocent person may be unjustly condemned and defamed in society. 

In the facts of the case, the Court quashed proceedings against the petitioner. It also directed the investigating officer to investigate and take appropriate action against the complainant for lodging a false complaint against the petitioner. (XXX v. State of Kerala – CRL.MC NO. 5582 OF 2016) 

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